Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 2 - Evidence
OTTAWA, Wednesday, March 14, 2001
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-4,
a First Act to harmonize federal law with the civil law of the Province of Quebec and to amend
certain Acts in order to ensure that each language version takes into account the common law and the
civil law, met this day at 4:05 p.m. to give consideration to the bill.
Senator Lorna Milne (Chair) in the Chair.
The Chairman: Honourable senators, I see a quorum. This meeting of the Standing Senate
Committee on Legal and Constitutional Affairs is now in session.
We continue our consideration of Bill S-4, the Federal Law Civil Law Harmonization Act, No. 1.
Today we have before us Minister Anne McLellan. Our hearings on this bill began on March 1 with a
panel of academics. Our intention to hear officials from the Department of Justice on February 28
was postponed due to the very unfortunate death of Senator Gil Molgat.
Sitting in on our hearing today are six delegates from the Forum of Young Canadians. They come
from the provinces of B.C., Ontario, Quebec and Nova Scotia. We will give them a bit of an
education on legal affairs across Canada today.
Minister McLellan, the floor is yours.
The Hon. Anne McLellan, Minister of Justice and Attorney General of Canada: It is with great
pleasure that I appear once again before you today in the context of your study of Bill S-4. I would
like to speak briefly to you about the historic and legal context surrounding the government's plan to
harmonize federal law with Quebec civil law, as well as the principles that must guide us in our
I appeared before your committee last June to present Bill S-22. I am sure we all suffer from some
sense of déjà vu this afternoon and I apologize for that, but obviously Bill S-22 was the predecessor
of Bill S-4. When I appeared here last June, I emphasized how valuable an asset bijuralism is to
Canadians truly are lucky -- blessed I would say -- to live in a country where the civil law and the
common law coexist side by side. They are the two principal legal systems that govern three-quarters
of the nations of the world.
As I mentioned then, it is essential to understand that, in the province of Quebec, private law rights
and obligations are governed by the Civil Code of Quebec. The other nine provinces and the
territories are governed by the common law. Bijuralism requires the drafting of legislation in
harmony with provincial private law. This ensures that all federal legislation applies equally and
clearly to all Canadians.
Bill S-4 is a means for the federal government to better acknowledge the importance of Quebec civil
law as it impacts on the application of federal laws in that province.
Unfortunately, for many years, federal statutes did not adequately reflect the presence of civil law
concepts as they touched on private law issues. In the preamble to Bill S-4, we acknowledge that the
civil law system in the province of Quebec is a key component of that province's uniqueness. It is the
only province that has a civil law system.
Since bijuralism is an important part of what Canada is, we want to ensure that our federal statutes
reflect civil law principles and concepts where it is relevant for them to do so.
Given the innovative character of the harmonization program, it was thought a preamble would be
useful to put the bill in context and to explain the importance of this initiative. The preamble
therefore recognizes that Quebec is the only province in Canada that has a civil law system and that
the bill represents a concrete effort to reflect in federal legislation, where it is relevant to do so, civil
law principles and concepts. The preamble also fully acknowledges the common law as the other
half of Canadian bijuralism.
A question was raised by you, I believe, Senator Cools, during my appearance on Bill S-22 last June
as to whether the effect of the bill would be to assimilate Quebecers. Another question was raised by
Senator Grafstein on March 1, this time relating to the difference between harmonization and
I want to spend a few minutes now to make it absolutely clear that this bill is the reverse of
assimilation. In fact, Bill S-4 seeks to ensure that all Canadians will have access to federal legislation
respectful of the legal tradition existing in the province or territory in which they reside -- civil law
in Quebec and the common law in the rest of Canada.
Thus, while federal law may apply a single principle nationally -- for example, a principle like the
liability of the Crown in tort -- it will do so in a manner which is respectful of common law and civil
law traditions in each province or territory.
There is, therefore, coexistence between "uniformization" and harmonization of federal statutes.
Federal laws are uniform in the sense that they apply a single rule throughout our nation. They are
also harmonized in that, in relation to matters of property and civil rights, federal statutes respect the
particularities of the civil law or the common law as it applies in a given jurisdiction.
I would, this afternoon, like to reassure you that Bill S-4 aims to reflect the principles and concepts of
both of our great legal traditions. I hope that we are providing, in some small way, further roots for the
civil law system in our country, acknowledging that that system stands on an equal footing with the
common law system as far as federal legislation is concerned.
Our bijural tradition gives Canada an advantage internationally. You will remember that I spoke
about this at, perhaps, too great a length when I was here before. However, it is worthwhile to
remember that our bijural tradition enables us to understand better the legal systems of countries with
a common law or civil law tradition and it facilitates communication with them.
In an age of globalization of trade and other things, our harmonization program is very timely. As I
have attended international meetings of justice ministers, be it with the Organization of American
States where the legal system of the vast majority of nations is based on the civil system, or with the
G8 ministers, the majority of which are European countries that reflect the civil system, it is
interesting and gratifying to see the officials of our government in this country able to work across
the lines of the two great legal systems of the world regardless of the subject matter.
That leads to something that probably goes without saying which is this: That ability provides us
with enormous value added in terms of what we bring to the table as a nation. We can cross those lines
and bring people together to work not only in French and English but with confidence and assurance
in both common law and civil law principles. Dare I say that those who are trained in both great
system and in both French and English can almost write their own ticket; they are in such demand
around the world.
Such knowledge is an asset for our country and we need to understand the profound dimensions of
that asset. We can understand why our friends in Germany or France might have a problem with
certain suggestions from our American or British counterparts in terms of privacy or property rights.
Our Canadian officials act as the bridge between these groups. It is amazing to see the facilities of
those who are trained in both great systems of law and who can speak French, English and, in many
cases now, Spanish. They can help people to understand each other's legal systems. They can explain
the principles of the two great systems in ways that make sense in international conventions and
other kinds of documents.
Some of those talented people are here today with me. I am thankful that they continue to serve the
public in the Department of Justice and that they have not chosen to go off and make their fortunes
We are lucky as a country to represent two of the great legal systems of the world and to have people
who feel comfortable working and advising in both systems. This is true not only in terms of our
work here but particularly in terms of our work in the international milieu.
Our harmonization program is totally unique. This innovative initiative does not exist in any of the
other countries that share this dual legal tradition with Canada. This program is tangible evidence of
the government's commitment to our two great legal traditions and to achieving full equality
Canada is a bilingual country. Since 1774, the traditions of common law and of civil law have
coexisted here. In practice, in the area of private law, the province of Quebec has a civil law system
while the other provinces and territories have common law systems. The Constitutional Act of 1867,
dividing up legislative powers between Parliament and the provincial legislatures, did not change
By giving the provinces jurisdiction over property and civil rights, the Constitution Act, 1867
enabled the provinces to pass legislation in key areas governing the legal relationships between
individuals. Some examples include the rules governing the family, estates, property, obligations
When exercising its legislative powers, the federal government often refers to principles and
concepts found in provincial private law. Consequently, we say that provincial law is
complementary to federal law. When federal legislation uses or refers to principles and concepts
found in provincial or territorial private law, it interacts with the two legal traditions that coexist in
Remember that this interaction occurs as well in both the French and English versions of federal
legislation. However, in many cases over the years, the federal legislation has not succeeded in
giving civil law the same importance as common law.
On January 1, 1994, the new Civil Code of Quebec came into force. That was a very significant
event, not only for the Province of Quebec and civilists, but for all Canadians. The code profoundly
changed the civil law of the province of Quebec. In the fall of 1997, in Montreal, at the conference on
harmonization of federal legislation with Quebec civil law and Canadian bijuralism, I officially
launched a long process which has led to the introduction of Bill S-4. This process, as I told you last
time, is just beginning in many respects.
In 1999, the government gave the Department of Justice the permanent resources necessary to
finance the harmonization program. One objective of the program is to ensure that federal legislation
fully reflects the terminology, concepts and institutions of the civil law. Another objective of the
program is to ensure that any changes to federal legislation take into account the French common law
terminology developed in Canada by the associations of French-speaking jurists.
Given that there are now more than 700 federal statutes, you can no doubt appreciate the magnitude
of the task. As the honourable senator Pierre De Bané stated during second reading of Bill S-4, some
350 statutes have thus far been identified as requiring harmonization.
Bill S-4 amends 49 federal statutes. With the exception of eight changes involving correlation and
coordination, it is virtually identical to Bill S-22 which died on the Order Paper last year. These
changes are minor and are intended merely to reflect the legislative evolution that has taken place
since Bill S-22 was tabled in May, 2000.
I would like to draw your attention to the fact that, in the course of harmonizing federal legislation,
the Civil Code section in the Department of Justice is governed by three paramount considerations.
The first is to guard against effecting any substantive change to the federal legislation being
amended. That is a key point which would be of interest to you if you thought we were, in some
backdoor way, changing the substantive law. I want to make it absolutely plain that we are not doing
that in any way, shape or form.
Next, our goal is to ensure, in close collaboration with the legislative services branch of our
department, that amendments are being made to federal legislation taking into account modern
Canadian French common law terminology. This terminology was developed over the last 20 years
in Ontario, New Brunswick and Manitoba and is the result of significant studies to reflect in French,
notions that were originally set out only in the English common law. This, too, is a remarkable
development when you look at the work that has been done in provinces like New Brunswick,
Manitoba and Ontario in this regard. Again, it has been a mammoth undertaking of amazing work
that makes us a world leader in this area.
To assist in this endeavour and to help in the development of a common law terminology, the federal
government established a national program for the integration of both official languages in the
administration of justice.
The final consideration that my section takes into account when doing this work is that the federal
departments responsible for any statute being harmonized must agree with the proposed changes.
Even though we are not affecting the substance of the law, the departments must agree with the
We also consult with centres of expertise such as the Canadian Bar Association, la barreau du
Québec, le chambre des notaires du Québec and experts from various law schools in Canada. I
believe you have heard from some of those experts, including Dean Louis Perret.
I thank you for having given me the opportunity to present Bill S-4 to you.
Working with two systems of law in two official languages is not easy. The officials who are here
today can attest to that fact. They and their colleagues have worked hard with outside experts and
drafters to arrive at this ground-breaking juncture. This is quite a historic moment.
Bill S-4 will concretely acknowledge the existence of the two great legal systems of our nation in a
way which has not been done before in Canada or, indeed, anywhere in the world.
In his address to the symposium on the harmonization of federal legislation with Quebec civil law
and Canadian bijuralism held in Montreal in November 1997, my colleague the Honourable
Stéphane Dion noted the following:
Quebec is governed by a legal system that is specific to it and whose existence is protected by the
Constitution. Its private law tradition is an essential component of its specificity and also an element
of Canada's diversity.
He also reminded us of the following:
More than ever, then, we must do all we can to develop this important aspect of Canadian diversity.
Prime Minister Jean Chrétien believes deeply in the advantages of that diversity, which is why he
moved the resolution adopted in 1995 by both Houses of Parliament, recognizing that Quebec
society is distinguished in particular by its civil law tradition and calling on "all components of the
legislative and executive branches of government to take note of this recognition and be guided in
their conduct accordingly."
Before I conclude, I would like to reiterate what I said last June about the practical implications of the
harmonization program and Bill S-4. It has significant practical implications for those lawyers and
notaries who practice law in Quebec. I do not know if you intend to hear from them, but we have the
strong support and complete cooperation of both lawyers and notaries who work in the province of
Quebec. This is a profoundly important initiative for them, the men and women who work every day
practising law in the province of Quebec. It will particularly impact in areas such as house
transactions and dealings with what we call mortgages in English. This is perhaps not glamorous, but
it is the bread and butter of many practising lawyers and certainly many notaries in the province of
Practitioners will be able to serve their clients better. The residents of Quebec will be better served by
federal laws that apply in Quebec the principles and concepts and the language of the civil law. This
is not some erudite exercise on which we are embarking. It is actually about ensuring that lawyers
and notaries and the people of Quebec understand their rights and obligations. It will also allow
Canada to play a leading role in the increasingly globalized world.
Honourable senators, again I thank you for the opportunity to speak to you today and I do look
forward to your questions, Madam Chair.
I would now like to introduce to you Mr. Alain Bisson, Senior General Counsel from the Civil Code
Section, who will speak to you about the challenges, priorities and work of Justice Canada's Civil
Code Section, that is in charge of the harmonization program and is responsible for the essential
elements of Bill S-4.
Mr. Alain Bisson, Senior General Counsel, Civil Code Section, Department of Justice Canada:
As has been stated, my remarks will deal mainly with the challenges and work priorities of the Civil
Code Section, after which I will speak about the main characteristics of Bill S-4.
The mandate of the Civil Code Section has four components. The first and most obvious is the
harmonization of federal statutes and regulations which refer to the private law, with Quebec civil
law, in a manner that respects both the common law and the two official languages.
The three other components of our mandate flow from the first. One involves maintaining a bilingual
and bijural documentation centre, developing bijural terminology records, and making these
resources available to legal counsel, translators and other interested persons.
Another component is to provide legal opinions and policy development services in civil law and
harmonization to departments, agencies and Crown corporations served by the Department of
Finally, the fourth component of the Civil Code Section's mandate is the sharing of our emerging
harmonization expertise and the promotion of Canadian bijuralism throughout Canada and with
In order to carry out its work leading up to Bill S-4, the Civil Code Section had to be innovative with
regard to both the development of processes and the work methodology used. Furthermore, an
entirely new terminology had to be created from scratch in order to properly describe the
harmonization problems and the drafting techniques used to resolve them.
As the minister mentioned, the word "harmonization" has a specific meaning in the context of
Canadian bijuralism. Contrary to the meaning given in the context of international trade, such as the
WTO, which signifies uniformity or commonality of measures, harmonization in the context of
Canadian bijuralism refers to the coexistence in legislation of two specific legal systems -- civil law
and common law -- using terminology that reflects both systems.
The drafting techniques used with Bill S-4 are very innovative. We published an article last June in
l'Actualité terminologique explaining our new terminology relating to harmonization as well as our
bijural drafting techniques. We plan on sharing the fruits of our experience through the publication of
a second compilation of articles on Canadian bijuralism in the context of the May 2001 Conference
of the Barreau du Québec. Let me add that this conference will devote much attention to bijuralism
We are furthermore working very closely with the Translation Bureau of Cabada in order that, as
soon as Bill S-4 is passed, we will be able to share our new bijural terminology with the entire legal
community -- translators, interpreters and other interested stakeholders, both nationally and
internationally -- through TERMIUM, the government of Canada's linguistic data bank.
Currently, the work priorities of the Civil Code Section fall into three major areas. The first is the area
of tax law. Our approach in relation to tax law is to address the major issues identified by practitioners
and government authorities in the application of tax legislation in the civil law environment. We
propose to deal with these problems one by one through harmonization provisions in upcoming tax
The second is commercial and property law, which involves the harmonization of half a dozen or so
statutes in the field of intellectual property, completion of the work on the Bankruptcy and
Insolvency Act, and working on legislation with air transportation and corporate law.
The third area is regulatory and government law, which involves the completion of the
harmonization of the 49 statutes which are in Bill S-4 with the 10 books of the Civil Code. These
statutes have thus far only been harmonized in the areas of civil liability, security and property law. I
would like to mention that we are also working toward the harmonization of all the regulations
adopted under these statutes.
Bill S-4 is the first of a series of initiatives aimed at harmonizing all federal laws with the civil law of
Quebec and I would, without further ado, like to give you a quick overview of the situation.
Bill S-4 includes a preamble and, as the minister explained, it was thought wise to take advantage of
the opportunity presented by the tabling of this first harmonization bill to outline within it some of
the most important characteristics of Canada's bijuralism. Part I of the Bill creates a new Act, the
Federal Law and Civil Law of the Province of Quebec Act. This Act repeals certain sections of the
Civil Code of Lower Canada that fall within the competence of Parliament and applies certain
provisions relating to marriage.
As outlined by professor André Morel in his study entitled Le droit civil préconfédéral et le rôle du
Parlement après le nouveau code civil, published by the Department of Justice in 1997, most of the
provisions of the Civil Code of Lower Canada that fall within the legislative competence of
Parliament have been expressly or implicitly repealed. Today, there remain only 44 of them that still
come under the State, those dealing with negotiable instruments, bankruptcy, interest on money and
Parliament's intervention thus has two aims: to clarify the status of federal legislation applicable to
the province of Quebec, since the survival of the provisions of the Civil Code of Lower Canada that
fall within the competence of Parliament may be a source of ambiguity and, second, to avoid any
potential conflict that might result from a contradiction between the standards set out in the Civil
Code of Lower Canada and those contained in the Quebec Civil Code.
After consultation with the Quebec Department of Justice, the Quebec section of the Canadian Bar
Association, the Barreau du Québec, the Chambre des notaires and various other stakeholders from
the academic world and from private practice, it is clear that there is a consensus in favor of the
repeal, without replacement and without further delay, of the provisions of the Civil Code of Lower
Canada falling or possibly falling within Parliament's legislative competence at this time. An
exception with regards to non-replacement would however be marriage.
The repeal of 16 provisions of the Civil Code of Lower Canada relating to the ability of parties to
marry requires replacement provisions so as to avoid any confusion that might arise, through their
non-replacement in the Quebec legal system. This is why there is a broad consensus with regard to
Parliament's intervention in this area. As stated in section 4 of the Bill, the substitution provisions
included therein are to apply solely in the province of Quebec. In the other provinces, the matter
comes under common law.
With the exception of the age of marriage, which now becomes 16 years of age instead of 12 for
women and 14 for men under the Civil Code of Lower Canada, the bill maintains the existing law to
the effect that marriage is between two persons of the opposite sex who freely agree to marry and for
whom no pre-existing marriage still exists.
Part 2 of Bill S-4 amends the Interpretation Act by adding sections 8.1 and 8.2. Section 8.1 is
designed expressly, first, to provide for the statutory recognition of Canadian bijuralism and, second,
to recognize the complementarity of federal law and the provincial law of property and civil rights.
In other words, it ensures that the suppletive law that applies to federal enactment in these areas is the
law in force in the province of application.
Section 8.2 is intended to facilitate a better understanding of the new drafting techniques which are
designed to reflect the Canadian bijural tradition in federal legislation.
Among the drafting techniques used I will mention the use, in each official language version of an
enactment, of wording that contains both the civil law and common law terminology. For example,
in the current Federal Real Property Act there are many provisions that are what we call in our jargon
"semi-bijural." This means that each linguistic version reflects only one legal tradition, such as the
use of the common law concept of real property in the English version and the use of the civil law
concept of "immeubles" in the French version.
In order to correct this situation we simply added the common law concept of "biens réels" in the
French version and the civil law concept of "immovables" in the English version. These changes are
found in Part 3 of the bill.
Another technique consists of using identical terminology in both civil law and common law
although the meaning may not necessarily be the same. For example, again in Part 3 of the bill, the
English word "lease" and the French word "baux" are used in both civil law and common law even
though they have a different meaning in each of these legal traditions. At common law, a lease
confers on a tenant an interest in property. On the other hand, in civil law, a lease grants tenants only a
How will these techniques be applied? Section 8.2 of the Interpretation Act provides that when an
enactment contains both civil law and common law terminology, or uses identical terminology with
different meaning in each legal tradition, the civil law terminology or meaning is to be adopted in the
Province of Quebec while the common law terminology or meaning is to be adopted in the other
As to Parts III to VI, harmonization has involved three broad areas of the Quebec Civil Code, namely
property law, security interest law and tort law. In each of these areas, a federal act has served as a
As mentioned with regard to property interests, and more particularly real estate, we used the Federal
Real Property Act that governs all real estate transactions as well as the management of those
buildings belonging to the government of Canada.
The Quebec Civil Code effected a major reform of security interest law. Part IV proposes changes to
the Bankruptcy and Insolvency Act that served as a test in this area. Several guarantee and security
mechanisms in place under the Civil Code of Lower Canada were grouped together under the
heading of mortgages that, since 1994, can be registered both against specific property as well as all
real and personal property, present or future. Let us remember that before 1994, only real estate could
be bound by a mortgage.
These are some of the important changes that are reflected in the amendments proposed to the
definition of "secured creditor" in the Bankruptcy and Insolvency Act.
Part V of the Bill amends the Crown Liability and Proceedings Act. As in the case of Parts III and IV,
here again we have a pilot act, in this case in the area of civil liability. The changes made to the act
deal mainly with the fact that in civil law, the notions of delict and quasi-delict were replaced in 1994
by that of extracontractual civil liability. As to Part VI, there we find various amendments to 45
federal acts relating to some area or another referred to in the pilot acts corresponding to Parts III, IV
and V. Certain problems resemble those Parts and others are new.
Finally, Parts 7, 8 and 9 are purely technical in nature and respectively deal with the consequential
amendments, coordinating amendments, transitional rules and the coming into force.
To conclude, I wish to emphasize that throughout the entire drafting process of Bill S-4, we ensured,
first, that our initiatives were the result of a consensus and that, but for a few rare exceptions, they in
no way change the rule of law contained in the amended provisions. Second, we ensured that the
reality of the new Quebec Civil Code is expressed in both linguistic versions of the provisions and,
finally, that the amendments take into account the French terminology of common law.
Senator Beaudoin: I would like at the outset, Madam Minister, to congratulate you for this colossal
-- this is the word that comes to my mind -- job of harmonizing federal legislation with our two
great legal systems: civil law and common law.
You talked about a terminology code that will follow. I agree completely. Last June, we brought this
matter up. The question of preambles has always fascinated me. When a bill is very broad and is
fundamental in nature, tradition favors including a preamble. I see here that you are referring to the
civil law tradition of the province of Quebec that is principally expressed in the Civil Code. We are
well aware that civil law is much more than the Civil Code. It is however very well said. The civil law
tradition of the province of Quebec, which finds its principal expression in the Civil Code of Quebec,
reflects the unique character of Quebec society.
You spoke about history. This goes back to the Quebec Act. In 1774, in the Quebec Act, the
Parliament of Westminster stated the following: We are re-establishing French civil laws in Canada,
in Lower Canada. Again this morning I verified two Privy Council decisions that clearly state that
the "property" and "civil rights" in section 92.13 mean the same as the "property and civil rights" of
the Quebec Act.
In addition, section 94 says that you can "uniformize," if I can use that word, the private law system
of Canada, except Quebec. Section 98 says that the judges of Quebec should be selected from the bar
of Quebec. Obviously, it is not simply a tradition; it is written into the Constitution itself. You
referred to the preamble. My impression is that it is clear, but I would like to hear from you why you
did it. Is it going to the foundation of our two legal systems?
Ms McLellan: You are right to point out that preambles are often used to set the context. If one is
embarking upon a new project, or an extremely important project, as this one is, then one again has
the opportunity to set in place, through the preamble, the context in which we will move forward and
the context for that which appears in the rest of the bill.
We have taken the opportunity, because this is such an important and novel undertaking for any
country in the world, to express in the preamble to Bill S-4 what we believe are some important
principles and pieces of the context, if you like, in which this project takes place.
The first principle -- "Whereas all Canadians are entitled to access to federal legislation in keeping
with the common law and civil law traditions;" -- sets outs a very basic principle of equality in terms
of the incidence of Canadians citizenship. We have two great systems.
The next clause in the preamble talks about the civil law tradition of the province of Quebec, which
finds its principal expression -- you are quite right, sir, that is not the entire expression and that one
would look at judges' decisions and other things today -- in the Civil Code of Quebec. I also believe
that that helps reflect the unique character of Quebec society. What is it that is different and unique in
terms of the Province of Quebec in relation to other jurisdictions? We have all been taught from our
first law school class, wherever we went to law school, that one of the things that makes Quebec
unique is its civil law tradition, primarily expressed in the code. Every law student in this country has
been taught that for a long time.
Senator Beaudoin: Do you come to the conclusion that the wording in the second "whereas" is
perfectly in accordance with the motion in the Senate and the House of Commons that was adopted
after the last referendum?
Ms McLellan: I do.
Senator Beaudoin: In my opinion, the words "caractère unique de la société" is the appropriate
phraseology. In any case, it is the same concept that is reflected there.
Ms McLellan: I am sure we will hear from Senator Joyal in a few minutes that he has some concerns
about this. I know that, I am respectful of those concerns, and I look forward to hearing what they are.
However, I believe that the second paragraph of the preamble reflects that which is self-evident.
Senator Beaudoin: We used that expression in both the Laurendeau-Dunton commission and the
Pépin-Robarts commission. I was a member of the Pépin-Robarts commission. Of course, the results
of those commissions were only reports, not legislation. However, the fact is that it was referred to in
many commissions or committees which dealt with the Constitution.
Ms McLellan: Yes, you are right, senator. I know that there may well be other points of view on this
and I will be very interested to hear them and very open to responding to them.
Senator Joyal: Before we exchange views on the preamble, I would like to deal with four substantial
clauses of the bill, those being clauses 4 to 7, which deal with marriage.I do not think it appropriate at
this time to state in federal legislation a definition of marriage that is presently contested in both law
traditions, the common law and the civil law. As you know, the Larivière case is presently being
heard in the Superior Court of Quebec. The principle on which the Larivière case is based is
essentially the equality section of the Charter as interpreted in M&H, a famous decision that you
followed up by introducing Bill C-23 in the last Parliament. The same issue was raised in Ontario
involving the City of Toronto. It was raised a week ago in your own province as well. In that case in
the Alberta Court of Queen's Bench, the attorney representing the government refused to take a
stand. He is not even contesting the definition of "spouse" that the petitioner requested. It is also, of
course, the object of a reference in the Court of Appeal of British Columbia.
In other words, the dispute over the definition of marriage is not an isolated case in one province. It is
being contested in the most populous provinces of Canada.
I believe that it is inappropriate to legislate on this at this time because I believe that in the very near
future we will get a final interpretation, probably from the Supreme Court -- at least that is the
intention that has been expressed by the parties in the cases before the courts. At that time, the
Parliament of Canada will have ample opportunity either to readjust its legislation or to take the stand
that it will deem appropriate.
Considering that we have passed into legislation Bill C-23 that gives equal benefits to people of the
same sex living in a common law situation, I think this clause is inopportune at this time. It could
have waited till the second phase of harmonization because, as you said, you are embarking upon an
initiative that will bring forth other bills in the future. There will be the opportunity later to take the
kind of legal initiative that the courts might suggest are needed considering the Charter of Rights and
I do not see the need for this clause at this time. Perhaps when you started the initiative of
harmonization we were not in the position of having jurisprudence that interprets section 15 of the
Charter and which I believe has a direct influence on the definition of "spouse" in that context.
I submit that that clause could have been postponed to a second or third phase of harmonization,
depending on the rapidity with which the court deals with that issue.
Ms McLellan: I certainly understand your point, but I believe that we are here reflecting the current
state of the Canadian law. We reaffirmed that state of the Canadian law in Bill C-23 saying that
marriage is the lawful union of one man and one woman to the exclusion of all others. We have
included these provisions which are found in the Civil Code of Quebec, 1994.
We thought about this long and hard, although not for the reasons you raise, Senator Joyal, because
we are quite confident in the definition of marriage, but for other reasons surrounding the Civil Code
of Lower Canada and many more technical reasons than the substance of the definition of marriage.
After discussing this matter with experts in Quebec and with the provincial government in Quebec,
we concluded that these were provisions that were seen to be important to relieve any uncertainty in
terms of the definition of marriage in the Province of Quebec. These are reflective of the current state
of the law and I believe that it is not inappropriate to do that which is in the Civil Code of Quebec and
which is the current state of the law everywhere in this country. If the law changes in some way in the
future, we will deal with it at that time, but this is clearly reflective of the law as it exists in this
Mr. Bisson: There are currently 16 provisions of the Civil Code of Lower Canada dealing with
marriage. While Quebec repealed the whole of the Civil Code of Lower Canada, these 16 provisions
have remained in force in the federal sphere.
So we end up with an incompatibility in terms of the minimum age for marriage. The Code
establishes the substantive requirements. The Civil Code of Lower Canada had a minimum age of 12
or 14 years. The new Civil Code of Quebec established the legal age of marriage at 16 for reasons of
celebration. This ambiguity between the substantive requirements for marriage and the former
conditions for celebration has always existed.
So there was an incompatibility with what remained in federal law regarding marriage in Quebec.
Since the government of Quebec seems to want us to correct this disparity, we decided it would be
opportune at this time to abrogate in its entirety whatever remains of the Civil Code of Lower Canada
in the federal sphere. As for the question of the age for marriage, we corrected this anomaly.
Senator Joyal: I take from the statement of the minister that, if the Canadian courts give marriage a
definition that is not the one contained in clause 5, you will have to adjust that, as you would have had
to amend Bill C-23.
I do not want to prolong the discussion on this, because this is not the only subject. However, in my
own humble opinion, I submit to you that the Justice Department must take notice of the Supreme
Court's interpretation of section 15 in relation to "same sex spouse."
Ms McLellan: We have looked at that very carefully.
Senator Joyal: We might hear you again, sooner or later, on that issue.
The Chairman: If I may interject for a minute, we are hoping to be able to have the minister for
another half hour. Senator Joyal, I shall allow you to ask one more question, and then we will put you
on the list for the next time around. Everyone should get a chance to question the minister.
Senator Joyal: I would like then to move on to the preamble. I have three points on the preamble. To
me, this needs further reflection.
The first question deals with the element of your statement that Canada is in a -- I would not say that
it is a "unique situation," because there are other countries in the world where two systems exist,
Cameroon being one, but Canada is certainly enriched by the coexistence of two legal traditions.
This is not stated formally as the first "whereas" of the preamble. The preamble puts the focus in the
beginning on the capacity of the citizens to have access to both legal systems.
If there is a unique character, in my own humble opinion, it is the fact that in Canada, since 1763 and
1774, the common law tradition and the civil French tradition have existed. In my opinion, that is a
very important element to state as the first "whereas."
The second point that I think is missing in this preamble deals with the fact that both legal traditions
express themselves in French and English. This, in my opinion, is very important. We heard a
previous witnesses --
Mr. Perret, the dean of the Faculty of Law at the University of Ottawa, emphasized this aspect. One
million Canadians practice common law in French. It is extremely important for us to not focus only
on the French and English versions but also on the fact that those who work under those traditions do
so both in English and in French. For its part, the Canadian government is one of the agents of the
development of bilingualism in each of these two traditions. As you said, since we are opening up
this initiative, I believe this should be reflected in the preamble.
Third, I would like to follow up on the statement of Senator Beaudoin regarding the second
"whereas." It would be advisable in my view to limit the definition of civil law to the Civil Code of
Quebec and not to make reference to political concepts. The concept of distinct society, as Senator
Beaudoin noted, made its first appearance in the Laurendeau-Dunton commission. It was taken up in
various reports thereafter, but it was especially the subject of a resolution of the Parti québécois in
1981, after the repatriation of the Canadian Constitution.
It is important to have in mind where this concept comes from in our political terminology. The
resolution that the Parti québécois tabled at the time in the National Assembly of Quebec contained
all the major elements of the debate that is ongoing, i.e. that Quebec constitutes, within the Canadian
federal framework, a society that is distinct in its language, its culture and its institutions and which
therefore possesses all the attributes of a distinct national community.
This is the essence of the debate that is still going on today, with the statement of the Premier of
Quebec that Quebec is not a distinct society, but a nation. The Premier of Quebec has kept repeating
this mantra for the last three weeks. He makes statements where the term "nation" is used as an
innocuous concept in the political terminology, something akin to the term "distinct society," while
in reality these concepts are not neutral. They give rise to two other concepts which are those of a
people and of the right to self-determination. Because if we are distinct, we are a different people.
And if we form a different people, we have the right to a different state. These concepts, when they
were debated at the time of the Meech Lake and Charlottetown Agreements, were the subject of
comments and discussions in the public forum. It does not seem advisable to reintroduce in a bill
concepts which have not been approved by the Canadian constituents, that is the other provinces and
the Canadian government.
Had such been the case, they could be restated here since they would now be part of the Canadian
Constitution. I think therefore it would be more advisable to simply say in the second paragraph of
Whereas the Civil Code of Quebec is the principal expression of the civil law tradition in Canada.
In this way, we would express the fact that the civil law tradition is alive and evolving in Canada. We
would avoid this whole debate.
I will conclude.
The Chairman: There is a vote in the House at 5:30.
Senator Joyal: It seems to me we would meet your objective.
Ms McLellan: I would be interested in discussion from the honourable senators here. As I say, it
does seem to me that one of the things that makes Quebec unique is its civil law tradition, which does
find its principal expression in the Civil Code of Quebec. I would be interested in the views of people
around the table as to whether that is a principle or a belief that is in debate. I find it somewhat
difficult to believe that the statement "the civil law reflects the unique character of Quebec" would be
I understand the senator's point in terms of distinct society, but we are saying something quite
different here. We are saying that the civil law tradition that finds its principal expression in the code
reflects the unique character of Quebec society.
Senator Joyal: It is the word "society," Madam Minister.
Senator Cools: The problem is the word "society," Madam Minister.
Ms McLellan: Well, "society" is a neutral word, is it not?
Senator Joyal: No, it is not.
Ms McLellan: If we want a modifier in front, I can then understand the controversy.
The Chairman: Madam Minister, obviously this will be a subject of discussion around this table.
We are running short of time to question the minister.
Senator Fraser: I have two questions, minister. The first involves a suggestion that came from one
of the learned professors who was here last week. It appealed to me, as a former editor. He was
talking about the fact that the law ought to be as clear and accessible as possible to everyone, not just
to a tiny core of specialists. His suggestion to help in this general understanding was that in cases
where we are inserting new words we should signal them in some visible, physical way. For example,
when all of a sudden in English versions of federal laws we find ourselves talking about
"immovables," which has not been a widely used phrase outside English Quebec, we should either
put asterisks around the word or expression or put the word or expression in italics. Do you
understand what I am saying?
Ms McLellan: Yes, I understand. I am just asking Mr. Bisson whether, in fact, there is some problem
from a drafter's point of view in terms of doing that.
Part of accessibility for people is flagging changes that have been made. I am willing to take a look at
that. That relates to form -- and I am not saying that it is not important. Form can be very important in
terms of issues around accessibility and understanding. However, it is an issue of form as opposed to
Senator Fraser: It is, but it is for purposes of clarity.
Ms McLellan: Let me look at that. We will get back to you on whether that is something we can do. I
am not sure whether the costs are driven up in any inordinate way. I have no idea. We will look at
those things and respond to you on that.
Senator Fraser: My second question has to do with the wording of the famous "whereas." I was just
struck by the fact that the original parliamentary resolution to which you referred, which was passed
by both Houses, recognized explicitly that Quebec is a distinct society within Canada, that
Parliament, and in our case the Senate, undertook to be guided by this reality and encouraged all
components of the legislative and executive branches of government to take note of all this, and be
guided in their conduct accordingly. However, the words there were "distinct society." Here we refer
to the "unique character of Quebec society" and the reference that I find using that precise
formulation is the Calgary declaration.
Is that from where you took it?
Ms McLellan: Yes.
Senator Fraser: Why? My personal preference is for "unique character of Quebec society," but you
can tell me why?
Mr. Yves de Montigny, Special Advisor to the Senior Assistant Deputy Minister, Public Law,
Department of Justice: Yes, we took the expression directly from the Calgary declaration because
at the time this proposed legislation was drafted that expression was most recent of this reality. In
fact, whatever the words used, I think we all know what we are talking about. It is pretty consistent
with the resolution adopted by both Houses. I do not think there is any fundamental difference in the
concept that is being used just because the words are a little different.
Senator Fraser: My personal preference is for "unique character."
It might be worth getting on the record, Madam Chair, that the Calgary declaration was the subject of
one of the most intensive public consultations I have ever seen in this country, in particular in Ontario
and in the West. Thousands and thousands of people were consulted directly in meetings. Detailed
discussions were held about it. They supported it, as did their legislatures.
Senator Cools: Perhaps the solution is for Parliament to discuss it some time.
Ms McLellan: Madam Chair, I realize that your committee will discuss this point among yourselves
in the days ahead. However, I would like to add another aspect to what Senators Fraser and Beaudoin
Let us look at what the late Chief Justice Brian Dickson said. He went so far as to say that, as a
practical matter, entrenching formal recognition of Quebec's distinctive character in the
Constitution would not involve a significant departure from the existing practice in our courts where
the Supreme Court of Canada and the lower courts have recognized the central issue that we are
Senator Beaudoin: Courts are part of the Constitution.
Senator Cools: We do not have to go into the politics of the entire issue. The fact is that that whole
question of "unique character" to which the minister is referring has never really been canvassed or
discussed properly on the floor of the chamber. That will be the right issue for another day.
I wish to make a couple of statements and to ask a couple of questions.
I was listening with some interest to the exchange between Senator Joyal and the minister on the
question of marriage. Because time is precious now, I will not pursue that matter with the minister
except to say that I hope that the minister is planning a most vigorous defence of the current state of
the law. The current state of the law is that marriage is between a man and a woman. I only hope and
trust that the minister and her department, along with the lawyers who will be taking the case
forward, will be arguing vigorously in favour and in support of the law. It is the duty of the minister to
uphold the law.
Ms McLellan: I understand.
Senator Cools: The question I should like to put you to is twofold, and I recognize that you must get
to the House. I have many concerns about this bill. We have been told that this bill is the first of
several. What I would like to find out from you is what sort of act of faith are you expecting from
some of us to pass a part of a whole without really knowing what the whole is? In other words, it
seems to me that, perhaps, we should have a better picture of the whole journey before we give total
agreement to this part. I am not doubting you in any form or fashion; however, if you say it is such a
huge undertaking, I want to know that what I am voting on at the beginning I will still be supportive
of at the end, lest we get to the end and I discover that I made a mistake in the beginning.
Ms McLellan: The whole journey is defined for us. We know what the whole journey is. It is the
existing body of statutes and regulations in Canada, and it will be those that we pass in the future.
That is the journey. We must play catch up here.
We have this whole body of federal statute law and regulations, both of which has not always
reflected the duality of our two legal traditions. As I indicated in my speech, we are dealing with a
large portion of the challenge or the journey here, but we still have to catch up with approximately
350 statutes. We are dealing with 49 or so here, but we know the journey to deal with the past is 350.
We hope, eventually, to be able to keep current on it so that when one drafts a law it is reflective of the
two great traditions where needed. In that way, we will not have this backlog of statutes. We hope to
be able to keep up. It is a big challenge, but that is the journey. It is dealing with the laws that are on the
books now, some 350, plus various regulations and other things, as well as trying to keep current with
the laws as they are passed by this body and the House of Commons.
That is the journey. It will be an ongoing journey because, as a law is passed that touches upon
property and civil lights, we will want to ensure that when that law is drafted in French and English it
reflects the principles and concepts of the two great systems. That is the journey on which we are all
Senator Cools: There is no time today, but I was always under the impression that the uniqueness
and the distinctness meant precisely that what you have just described did not have to happen. This is
how I have always read it historically. I have done a fair amount of reading on it, and that is what the
uniqueness, as you describe it, is supposed to mean, that "unique" means it does not have to be
reflected in every single or every other aspect, but we can take up this term.
The term "distinct society" has a long history. Senator Joyal is absolutely right. It had an original
political meaning. It is now intended, by those who want to push the law and the nation in that way, to
become the foundation of a national construct for a nation. I caution our committee that we should
proceed very carefully and very cautiously. I tell you, it is a very loaded expression.
Ms McLellan: We do not use the expression "distinct society." We talk of the unique character.
Senator Cools: Minister, we all know what went on in the so-called Calgary declaration. It was a
new way of saying the same thing. We will visit that problem, believe you me.
Ms McLellan: I was not finished, senator.
The Chairman: I have Senator Nolin on the list and I have a question as well.
Senator Cools: I will be very quick.
You keep talking about Canada's role internationally. Maybe I am not grasping this, but I do not
understand how this proposed legislation should have an international application. I was under the
impression that international affairs in this country are really beyond provincial purview.
Ms McLellan: The bill does not apply internationally.
Senator Cools: There is a part of the preamble that deals with international things.
Ms McLellan: Yes, because one of the things that we should be very proud of as a country is that we
have two of the great legal traditions of the world and two of the great languages of the world. This
provides us with a remarkable opportunity to work around the world and to help around the world;
but that does not mean that this law has any application outside the boundary of Canada. It does not.
Let me be clear about that. The international aspect of this is the assets we have -- at least, I see it as
an asset -- where we are able to work in the two traditions and the two languages. That is all I will say
Senator Cools: I understand it. I just do not understand why that particular phenomenon is showing
up in this law.
Among the groups of people or teams at the department that worked on this project, what is the
proportion of civil law lawyers to common law lawyers? I am asking in terms of the whole project of
harmonizing all the laws, and I am not sure what "harmonizing" means. I am just trying to figure out
what the proportion is of civil law lawyers to common law lawyers.
Ms McLellan: The Civil Code Section is made up of civilists by definition, civilian civilists. They
are all very civil people. The whole section is made up of people who are trained in the civil law. They
may also have a common law degree, but they are trained in the civil law and that is the nature of this
Of course, they work with people in the department. They work with legal services and other
branches where in fact the lawyers are predominantly trained in the common law system. We are
very proud of the fact that we have the number of civil law lawyers that we do. We will probably need
more of them, quite truthfully, as this project develops. The proportion, though, in my total
department is that common law lawyers would outnumber civil law lawyers by quite a large margin.
Senator Cools: On this project?
Ms McLellan: On this project. The civil law section is made up of civilly trained lawyers, but they
work and interact with other sections of my department where there are predominantly common law
Senator Cools: Thank you.
Senator Nolin: I have one comment and a question. First, as a Quebecer, I totally support the
I am surprised that this unique or distinct character would be questioned. Questioning it will feed the
Senator Joyal: This is what we are here to do.
Senator Nolin: We are here to give consideration to a bill that will facilitate the harmonization of the
two legal systems which have existed in Canada since 1774. It is high time that this be done and it
must be done with due respect to historical evidence. Since we are going back into history, and this is
part of my comment, it was Mr. Ryan who was first to bring this concept forward. He did not use the
word "society" but the word "community."
Senator Joyal: "National community."
Senator Nolin: Exactly, "national community," and that was back at the time of the 1980
referendum, in January 1980. This is not my comment.
We heard a professor from the University of Montreal. We can ask those questions of your officials
after, but before you leave, as a policy matter, one professor was Professor Fabien. You may have
read some briefing notes about what he said. He was recommending highlighting the technique, first
to clear some ambiguity between French common law and English civilist terms. I would appreciate
a comment from you on that. He was also recommending the adoption of a lexicon in the process.
The Chairman: My question follows along that line. I was going to ask that they look at the
observations on Bill S-4 that were given to us by Professor Fabien. There is appendix 1, better
terminology; appendix 2, rectification of certain omissions; and appendix 3, problem of readability
and proposed solution.
If the minister does not have time to answer this, perhaps we could get a written response.
Senator Nolin: Yes, it is only a matter of policy from the minister, because it will be brand new,
another way to write laws. We are making history, so why not do the whole nine yards.
Ms McLellan: On your first point, if I understood you correctly, it was the same point raised by
Senator Fraser in terms of highlighting. That is something that I want to go back and take a look at
and see if we can do that.
Senator Nolin: You are not opposed to that in principle?
Ms McLellan: I am not opposed to it in principle, but I do want to see if there are various kinds of
reasonable impediments to doing it and, if so, what they are. I am happy to do whatever I can to
ensure that this is readily accessible to as many people as possible. I am quite happy to look at that and
see if that is in fact something we could do in the context of this unique project, where one is
obviously using language that is specific and perhaps not that commonly used and well known by
some. I would be happy to look at that.
I am sorry, Madam Chair, did you have another issue?
The Chairman: I have a question about the terminology in appendices 1, 2 and 3, but I do not expect
you to respond to them today.
Professor Fabien was certainly an expert in language and in the modern use of language in the Civil
Code of Quebec. Perhaps you should look at that. There may be amendments arising out of that
Ms McLellan: Yes; absolutely. I have no problem doing that whatsoever. My officials will be happy
to do that.
The Chairman: I thank you very much for coming here this afternoon.
Ms McLellan: I am sorry have to rush away, but if I am not in the House for the vote we all know
what happens: I get into trouble. Thank you. It is always a pleasure to be here. I know I will be seeing
much more of you over the weeks ahead. I look forward to that. My officials will stay here to answer
any of your more technical questions.
The Chairman: Senators, I am in your hands. Do you want the officials to stay at the table to take
some questions? We also have Professor Nicholas Kasirer waiting to appear before us.
Senator Nolin: Can we have their comments on the proposition made by Mr. Fabien?
Senator Nolin: Mr. Bisson, did you have time to look over this proposal?
Mr. Bisson: Yes, part of it, but not in full.
Senator Nolin: We would like your comments in due time -- we know that this is all new and he
himself mentioned that this is a novel technique -- since the work we are doing here, and especially
yours, would resonate beyond our borders. Since we are innovating, why not go all the way? In
Appendix 3 of his brief, he identifies a few noteworthy problems as well as some terminology issues.
Senator Cools: Could we have a copy of those comments made by Mr. Fabien? I tried to read the
testimony but it was all in French.
The Chairman: This was handed out at the last meeting.
Senator Nolin: We would like to have you back to deal with this before the end of our work on this,
especially on two aspects, the highlighting and the lexicon.
Mr. Bisson: As for the lexicon, I can answer right away. As soon as Bill S-4 is passed, the
Department of Justice will establish a special Internet site on which we will publish free of charge a
technical lexicon of civil law and common law, in both languages that will include over 200
harmonized terms in Bill S-4. This will be a way to publicize them.
I also mentioned in my presentation that we are working closely with the federal Translation Bureau
and its Terminology Branch and that we are using TERMIUM, the federal terminology bank, as a
tool to disseminate our work and our harmonized terms at the national and international level. So we
are working on two fronts.
The Civil Code Section intends, as it forges ahead, to publish specialized lexicons of civil law and
common law terms and their equivalencies. However, we cannot start publishing technical lexicons
nor disseminating our work via TERMIUM before Parliament passes Bill S-4.
Senator Fraser: On this point, one of the things that really struck me when Professor Fabien drew
this to our attention was that some of the words in question already have ordinary meanings that are
not the meanings intended in their new role -- for example, "security" in English, which is "charge"
"Charge" also has a meaning in French, which is not necessarily the same as "security." I understand
you intend to publish a lexicon on the Internet, and that will be very useful for people who know how
to surf, but what about others who are not as sophisticated and who are trying to make sense of the
language in the legislation?
Mr. Bisson: We are going to look at that. We need to consult our colleagues, the legal drafters. Now,
there are hundreds of thousands of pages of legislation to review. Should we start with the new
harmonization bills? The whole body of law will need to be reviewed.
Senator Fraser: That would be a good idea.
Senator Beaudoin: The term "security" in this clause is used in the same sense as in the Civil Code.
Senator Nolin: It is used with the same meaning as "sûreté."
Senator Beaudoin: And also charges, mortgages, et cetera.
Mr. Bisson: My colleague, Alain Vauclair, worked on this part of the bill.
Mr. Alain Vauclair, counsel, Civil Code Section, Department of Justice: The word "sûreté" is
mainly a generic term used both in common law and in civil law. The meaning it is given in civil law
and in common law differs because the institutions are different, but lawyers of both civil law and
common law know exactly what they mean in each case, even though the meaning changes from one
system to another.
It is not unusual in federal legislation, where we want to reach the general public, to use generic terms
such as "garantie" or "sûreté," which carry the same meaning as "security" or "guaranty."
Senator Beaudoin: I agree with that.
The Chairman: Are there any further questions of the department officials? If not, then I will thank
you very much, gentlemen.
Professor, please join us at the table.
I wish to thank Professor Kasirer for coming here after several postponements and interruptions. The
floor is yours, professor.
Professor Nicholas Kasirer, Research Centre of Private and Comparative Law, McGill
University: First, I should like to express my gratitude to honourable senators for the opportunity to
speak to this bill. I am a professor of law at McGill University. I teach civil law and common law. I
teach in French and I teach in English. This bill speaks to me. I am pleased to have the occasion to
sing its praises.
I find myself in broad agreement with the principles of methodology expressed in the proposed
legislation. As a comparative lawyer and a jury linguist, I would commend the Minister of Justice
and her department for this important initiative, which brings the forces of bijuralism and
bilingualism to bear upon federal legislation in service of the four voices of Canadian private law;
that is to say, the common law in French and English and the civil law in French and English.
It is both practical and fair that human qualities be attributed to the legislator in terms of the language
of law. The metaphor of speech, for example, is present in the word parliament, which means that the
ability to speak is universally attributed to the legislator. If the legislator speaks, could we say that he
sometimes sings? This is indeed the suggestion contained in the title of Bill S-4, which rightly speaks
to the ambition of Parliament to harmonize federal law with the civil law of Quebec. My comments
this afternoon deal precisely with this word: "harmonization," which is found in the short title of the
This is one remarkable legislative metaphor. I commend the honorable senators for this poetic gem. I
believe this is an invitation for us to meditate on the acoustic qualities, on the acoustic qualities of
federal law being expressed, as I say, as a song with four voices, through the combined effect of the
English and French official bilingualism and of the bijuralism based on the complementary character
of provincial common law. In this new harmony, how should we understand the melodic goal of
Parliament? In fact, the legislative metaphor of harmonization highlights two facets of this bill
which draw attention on the importance and urgency of its passage.
Harmonization, as a musical technique, shows how the four voices of federal legislation are being
fine-tuned with full respect being paid to bilingualism and bijuralism. My first comments will deal
with the way the bill is being sung on a technical level. Secondly, the word "harmonize" refers to the
values of tolerance, diversity and serenity which seem to be the symbolic foundation of Bill S-4.
Therefore, I will deal in the second part with the symbolic function of the bill that is implicit in its
First then, what does "harmonization" imply as a matter of legislative technique? Harmony takes
different forms in music theory. Multiple voices can come together as one or differently to achieve a
unified effect. Quite plainly, the federal Parliament has chosen the model of polyphonic music as
opposed to monophonic song for Bill S-4, and one presumes for the legislation that will be sung in
this chamber hereafter.
By "polyphony" I mean that musical form whereby multiple voices, each singing in a different
register, combine differently to form a musical whole. One thinks of the polyphonic music of
Palistrina or de Lassus of the 14th and 15th centuries.
...multiple voices resounding in harmonious dissonance.
Polyphonic legislation would thus be the method by which the legislative song, as it were, emerges
as a whole through the harmonious combination of four different voices -- the common law in
English and French and the civil law in English and French, which taken separately are radically
different but taken together express the whole of the legislative norm.
The task is daunting, but it is the imperative of section 133 of the Constitution Act, 1867, which give
French and English equal authority as expressions of legislative text and the coexistence of the
common law and the civil law as varying bases of suppletive law for federal legislation that imposes
this polyphonic legislative form.
Plainly, the former reality, in which the English text represents the common law and the French text
represents the Civil Code, not only ignored the reality of a vibrant civil law culture in English in
Quebec but also the promise of a common law culture in French outside of Quebec such that two of
the voices of Canadian law were in some measure silenced.
I consider the effort of the choir of lawyers of the Department of Justice, who are with us here and
who have been involved in the preparation of the bill, to be an immense success. Let us take for
example the reformulation of the Federal Real Property Act, the Loi sur les immeubles fédéraux,
combining four different voices, of Part III of Bill S-4. Let us not forget that the area to which this act
applies, namely real estate law, is that area of private law where the divergence between common law
and civil law is the most marked.
Rather than giving up ahead of time on this musical concert or than contenting ourselves with the
counterpoint method, a harmonious interaction -- I am quoting here from the preamble of the bill --
is being established in the new texts. When we look, for example, at the long title being proposed for
the Federal Real Property Act, we see that a word has been added to the English text, and that was
mentioned earlier --
-- "immovable" added alongside "real property," which is a civil law idea alongside a common law
idea, both of which evoke different physical and conceptual realities in law.
In the same way, the French text, with the addition of the words "biens réels" after "immeubles,"
seeks to add visibility and consistency to the act by adding a stock-phrase of common law in French.
Many other examples could be cited in service of establishing this technical harmony, instances of
linguistic and conceptual dissonance that have been lessened in federal legislation. Given the time
already devoted to the discussion, I would simply invite your questions on those if you have any.
However, I would stress the quite remarkable achievement of members of the Department of Justice
in this respect.
By way of example, one thinks of the idea of an "immovable" in civil law English now as the
embodiment of real rights in the Romanist tradition that will be acknowledged throughout not only
this proposed legislation but, one presumes, federal legislation, whereas the language of common
law interests in the past was alone spoken to in the English text. By the same token, the French text no
longer allies itself exclusively with the civilian and Romanist conceptions of rights and property but
extends to the full panoply of the regimes of estate and tenure in land that are as vibrantly felt in St.
Boniface or Moncton as they are in Toronto.
See how the musical techniques vary at times. In those cases where a provision may apply in a
common law province, for example, Parliament wisely lets common law sing solo. Clause 16, for
example, of Bill S-4 modifies a provision of the former Federal Real Property Act. Previously, there
were the terms "words of limitations," a common law concept. Today, in a provision that would not
apply to Quebec but would benefit francophone common law lawyers outside Quebec, there appears
the beautiful expression "terme de délimitation," an equivalent term for common law in French.
Moreover, it is important to stress that the federal Parliament has not renounced its own regulatory
role in this respect. It is not only --
-- following along in the footsteps of provincial law.
By way of example, I refer you to clause 11(5), which defines "immovable" to include a right under a
lease. Now, this is not in keeping with the civilian concept of "immovable" whereby a right under a
lease is immovable because it is a personal right in the civil law tradition. However, because, as I
understand it, the intention of the federal legislation is more expansive than that, quite correctly and
appropriately the federal Parliament has taken a departure from this civilian concept. Therefore, in a
sense, what we see is a balanced approach to the recognition of values of uniformity and difference as
they are felt across Canada.
Rather than simply listing examples, allow me to underscore the immense difficulty of the task
undertaken by Parliament, which is the measure of its tremendous success.
Very few countries find themselves with the rich challenge of official bilingualism and bijuralism;
fewer still have governments and parliaments talented enough to take up the challenge of expressing
this legislatively. The preamble to this bill almost bashfully, in my view, evokes how the full
development of our two major legal traditions gives Canadians a window on the world and facilitates
To my mind, Bill S-4 is more of an open window on Canada than a window on the world, allowing
Canada to take up its role as ambassador for comparative law. Anecdotally, I have been at
international conferences in Europe over the past year where I have seen an intense interest in the
civil law as it is expressed in English and the common law as it is expressed in French among
European countries that are struggling with the reality of a common private law for Europe. Canada
is genuinely not just a window on the world, but this bill is an open window for the world on Canada.
Now, few good things are beyond improvement. As others before me have perhaps signalled, there
are technical instances in which the bill might be improved. At a general level, may I observe that it is
perhaps inappropriate for Parliament to put its full faith in the linguistic expression of the civil law as
it is found in the Civil Code of Quebec in its most recent version. The Civil Code has been criticized
within Quebec for some of its new vocabulary, particularly in English, so there is no reason to simply
assume that the words used in the Civil Code are beyond reproach. I think federal draftsmen and
women have the responsibility to reflect upon the appropriateness of civilian and common law
terminology and not just simply assume that it is being properly used in Quebec.
For example, Quebec scholars working beyond the purview of the federal legislation have observed
instances of dissonance in the Civil Code between the French and English text, as is often the case in
Quebec legislation where the French and the English texts are poor mirror images of one another. It
would be inappropriate and rather sad if the federal Parliament simply took the Quebec Parliament at
I will give an example of a turn of phrase that finds itself in Bill S-4 that is not beyond criticism, as it is
taken from the Civil Code. In clause 35 of the bill, which amends a portion of the law dealing with
Crown liabilities, there is a provision dealing with instances where the Crown is liable for damages
that, if it were a person, it would ordinarily be liable -- a critical provision whereby the Crown
distances itself from ordinary rules of immunity.
In the French text of the Act, that part which deals with the application of the principle in question to
the province of Quebec says, and I quote:
[...] le dommage causé par le fait des biens qu'il -- the Crown -- a sous sa garde ou dont il est
propriétaire ou par sa faute à l'un ou l'autre de ses titres.
The words "par le fait des biens," drawn from clause 1463 of the Quebec Civil Code, are what
interest me here. In fact, clause 1457 and subsequent clauses contain these terms. Let us look at the
The damage resulting from the act of a thing in the custody of or owned by the Crown, et cetera.
"Le fait des biens."
"The act of a thing." This is a technical point, but it makes the broader point that we should not rely on
the Quebec legislature to fix the vocabulary.
The word "fait," in French, refers to both the act and the omission to act. It is a lovely word that has no
equivalent in English. The word used in English however
"Act" seems to be limited to merely the positive act and leaves out the very important instance, for
example, where the Crown omits to do something that causes damage.
This dissonance between the French and English text as found in the Civil Code has already been
remarked upon by scholars of the law of obligations in Quebec, again, at arms length from the work
that honourable senators are doing. I cite this by way of example to make the point that legislators
should not simply --
-- buy sight unseen the lexicon of the Quebec Civil Code.
There are other instances where this same issue presents itself for some of the work that is ahead of
the Department of Justice and eventually ahead of Parliament in these further stages that the Minister
of Justice referred to earlier. One famous example is taken from the Divorce Act: the use of the word
"custody" in the English text of the Divorce Act and its equivalent offered up in French as "la garde."
"Custody" in the common law tradition and "la garde" in the civil law tradition do not mean precisely
the same thing.
"La garde" represents a facet of parental authority, whereas "custody" is a overarching principle that
extends beyond the simple physical presence of the children.
The problem is made more complicated by the fact that the civil law in English uses the term
"custody" as an equivalent of the civilian concept of "la garde."
The problem for my colleagues behind me and eventually for my colleagues before me is what the
federal Parliament should choose for its newly harmonized Divorce Act, which I imagine will be
coming down the road. To my mind, and I cite this by way of example, this may be an opportunity for
the federal Parliament to assert its legislative role in service of adopting a single and uniform rather
than a harmonized rule for the whole of the country -- if it is of the view that for children across
Canada, notwithstanding the province in which their parents might find themselves in legal dispute,
we would want one single rule. Similar issues present themselves in tax law where we might expect
the legislative policy to turn more on uniformity than on difference. Again, I would invite
honourable senators to reflect on the balance between uniformity and harmony that should be
achieved for which principles do not seem to be clearly expressed in the preamble of the legislation.
As I stated in my introduction, the meaning of the word "harmonization" extends well beyond its
efficacy as a musical metaphor. Beyond technique, harmony brings into play values of coexistence,
of diversity and of peace, while evoking a spirit of agreement, of a coming together in difference, that
which this Act is based upon.
I further believe it should be underscored that beyond its importance in the area of legal technique,
the Act is very important symbolically speaking. The fact that helping four different voices sing on a
equal footing has a certain symbolic importance for Canada to my mind gives to the bill a certain
iconic, that is to say symbolic, function, beyond technique.
This symbolic function is to display openly the possibility to ally difference within the project of
Canadian federalism. It seems to me unquestionable, whatever one's politics, that this is a part of the
legislative project. I am encouraged in this view by the fact that the former studies of federal
legislation, after having pointed out its failings, have suggested that judges and scholars and lawyers
were rarely ever confused by the technical problems presented by federal legislation. It would seem
to me that the harmony we seek to address in this legislation might be less one of addressing true legal
confusion and more one of addressing the symbols that are incarnated in the federal statute books,
because symbols they are. It is fair to say and fair to think of the statutes of Canada as having this
iconic or symbolic function. They stand as a symbol for coherence rather than uniformity of law in
the federal jurisdiction across Canada's official legal and linguistic communities.
This iconic function is exemplified, for example, by the fact that the French and English texts stand
side by side as equals in the federal statute books. This is a symbol sustaining a rule and an attitude of
legal interpretation that treats, under section 133 of the Constitution, the two texts that look at each
other, that find themselves in a measure of dialogue, as equals. This is to be contrasted, interestingly,
with the legislative practice in Quebec where the French and English texts are no longer, since the
mid-1960s, published side by side, again, whatever one's politics might be, which does a disservice
to the rules of interpretation for Quebec law.
Mindful of this symbolic function, I would respectfully make two observations concerning possible
improvement of this legislative project. The first is minor in appearance and I present it by way of a
question. We know that the title of the Federal Real Property Act had to be altered to accommodate
the common law in French and the civil law in English. However, I note that, in the expression
chosen for the title of the act, the civil law and the common law are reversed as they are presented in
the titles, and I wondered if this was a conscious, symbolic gesture.
If you look, for example, at the short title of the act, as alluded to in clause 10, you will see that the title
will henceforth be cited as the "Federal Real Property and Federal Immovables Act" in English.
La Loi sur les immeubles fédéraux et les biens réels fédéraux.
In the French text, the French language comes first and civil law in French follows. Common law in
French comes in second place. Why? In the English text, however, it is common law in English that
comes first, followed by civil law in English. The majority having priority in each case, is this a
symbol that Parliament wants to express by reversing the order in the two linguistic versions? This is
a question I asked myself upon reading the bill.
Titles of legislation are themselves symbols. I address my second remark to the title of the bill itself.
If we understand the purpose of the legislation as it was exposed to us earlier by the minister, and as
the long title suggests, that is to ensure that each language version of federal legislation takes into
account the common law and the civil law, why does the short title only make mention of the civil
I realize that the mandate of the Department of Justice was specifically focused on the civil law and
the advent of the Civil Code of Quebec, but are they underselling the importance of their own work
symbolically and of their own talents of which I am so admiring?
In order to explicitly recognize in the title of an Act the vigour of common law in French in Canada, I
would, with all due respect, suggest the addition, after the word "harmonize," of an allusion to
common law, so as to emphasize the real ambitions of the legislator.
In conclusion, let me say that I strongly support the initiative leading to the tabling of Bill S-4. This
bill is a model of comparative legislative technique and is eloquent proof of the impressive talent
contained within the Department of Justice and the expression of a wonderful legislative will on the
part of the Canadian Parliament. We have here true recognition of the country's bilingualism and
bijuralism. Canada could thus be an ambassador for comparative law.
I say, and this is the second remark of my conclusion, that the balance between a uniform melody on
the one hand and the diversity of voices on the other will in my opinion be difficult to maintain in the
future. I mentioned the fiscal context, which is of particular concern to me.
As a third conclusion, care must be taken on an ongoing basis to measure all the features of the
common law and the civil law culture not fully expressed in terminology.
It was observed earlier by Senator Beaudoin that not all of the civil law finds expression in the Civil
Code. It is true, too, that the civil law style is one of the features that differentiates itself from the
manner in which federal law generally is expressed.
Is the refined style of the Civil Code perhaps one of the values that we want to harmonize with federal
legislation? Finally, the polyphonic image -- the multiple voices -- might serve as a reminder to us.
There are perhaps other voices in Canadian law that have not yet official status. I am thinking of the
voices of the Aboriginal peoples, who have a legal culture and at times a language that are not fully
recognized in this Act. In your polyphonic endeavours, I am asking you to not limit your ambition.
Senator Joyal: I am tempted to take advantage of your wisdom and of your knowledge of both
systems. In the redrafted version of the Civil Code of Quebec and in present-day common law, we see
the new values expressed by the Quebec Civil Code. We take particular note of the respect of the
individual and of a better balance within the legal trade, in other words the ability to maintain
balanced relationships within the trade. There is explicit reference to the Charter of rights in the
introduction to the Code. There is reference to the Charter of rights of Quebec, even if, in practice, the
Canadian Charter of Rights and Freedoms is not mentioned. We all know that it applies in all areas
and all relationships between the citizens and the state, in other words the Crown. In your view,
where is the convergence or the resemblance between the two systems with regard to fundamental
Senator Nolin and myself studied law. We were trained in the tradition of the old Civil Code. This old
Civil Code in a way fostered parental authority unequally between the two sexes and gave greater
tangible value to immovable property as opposed to movable property. The notion of individual
rights is completely absent from the consolidation, which was done in 1864. Various texts were the
vehicles to transmit practices, usages and customs passed down from a period when hierarchical
authority was a concept that infused all social relationships. Most fortunately, the new Code
removed these out-of-date concepts from our civil legislation.
Could you, based upon your daily practice of comparative law, very briefly draw out a comparison of
these two traditions? We have a very compartmentalized vision of the two systems despite the fact
that there are very important nuances. You mentioned a few of them, particularly with regard to
clause 35 or clause 10. Leaving aside these nuances, where do the two systems converge?
Mr. Kasirer: That is a very broad question. I will try to answer it in the context of the task you have
before you. Quebec civil law is most certainly being modernized. The paternalism of the dark ages
that you mention is no longer a factor, at least not formally.
However, in the modernization of civil law and the convergence of the values that are more or less
markedly present, depending upon the legal field in which one works -- for example contract law or
respect of the person law -- one can find these same values throughout western law, be it common
law, civil law or whatever else.
It is important to understand that the task of the Quebec legislator has been a task of modernization
while respecting what I would call the genius of the civil tradition.
Despite a certain convergence of ideas or of metajudicial values, when you come back down to earth
and see the way in which these values are found expressed in law, there may be, despite this
convergence, major differences between civil law and common law in Canada. This is why federal
legislation must be crafted in such a way that we do not lose sight of the proper enforcement of
federal laws, in Quebec or outside Quebec, because of this idea of laws that complete federal
legislation when applied in a province.
Federal legislation is superimposed on a base of common law in civil law in Quebec and on a base of
common law in common law outside Quebec. It is very important to be sensitive to what you
designate under convergence, but also to be sensitive to what, in the conceptual language of civil law
and common law, the federal legislator intends with the specificity of this language.
For example, Quebec civil law is perhaps one of the greatest innovations. In the area of property law,
there were two elements: mortgages on real estate, mentioned earlier, and the establishment of a true
trust within civil law in Quebec. There had been a partial trust under the old Code, but with the
Quebec Civil Code, there is a true trust that works much in the way of the common law trust.
There are major differences, but what must be stressed here is that trusts are today possible under
Quebec law. In the past, it was an impossibility conceptually, given the Romanist concept of
property. Today, for example, in federal legislation, fiscal law, in English, often applies the classic
distinction in law between "legal" and "beneficial ownership." I have a colleague here who is
presently working on this. Today, with the convergence of values you mentioned, a trust is possible
under Quebec law.
However, it is not enough to simply use the word "fiducie" in new fiscal law. Terminology will have
to be chosen in civil law in English and in French and in common law in English and in French in
order for federal legislation to apply throughout the country as the legislator intended. A balance --
that I do not yet see -- must be established between uniformity, specificity and diversity.
Senator Joyal: Should the idea of complementarity with federal legislation, given the symbolic and
iconic value of the bill, not be more formally reflected than it is at present in the bill's preamble?
Finally, the preamble simply recognizes the existence of two systems and the role of the Canadian
government is establishing a balance between them.
Mr. Kasirer: Am I not right in seeing a rather explicit allusion to the principle? Perhaps I am
mistaken, and if that is the case my colleagues will correct me, but I see in the French text, in the fifth
Que, sauf règle de droit s'y opposant, le droit provincial en matière de propriété et de droits civils est
le droit supplétif pour ce qui est de l'application de la législation fédérale [...]
In the preceding paragraphs, it is clearly established that civil law is both the common law and the
civil law. The message that perhaps seems hidden or insignificant is of the utmost importance. A
judge in Quebec, in cases where federal legislation is silent or for example does not define what real
property is, as is done here, or only defines it partially, must use the supplementary law which is
Quebec is the civil law and outside of Quebec is the common law. I see some reference to that here,
but I am not a legal drafter and I do not know the importance that may have. That being said, I do fully
understand your concern.
Senator Pearson: Thank you very much for your presentation. I found it delightful.
I had the interesting and challenging experience of being the co-chair of the joint parliamentary
committee on child custody and access. I was struck by some of the concepts in the Quebec civil law
and how useful they were for moving some of the ideas that we wanted to move into our
recommendations. I am hoping that the changes in the law will have taken place before we have the
harmonization stage on this legislation. I would like to get rid of the word "custody" entirely.
However, we will see where that goes. I was interested in your reference to it.
What is here before us is small. However, one of our witnesses the other day threw out a line at the
end of his presentation saying basically that marriage should fall under provincial jurisdiction. That
is another issue about which we will not talk today. We know historically why divorce falls under the
In your experience in comparative law, have you seen in Quebec the impact of some of the concepts
that were embedded in the common law tradition of the existing divorce law and its corollaries? I am
hoping that there will be a fruitful interaction as we work toward new legislation.
Mr. Kasirer: It is a nice question, senator. I teach family law, and I teach it principally as a civilian.
However, I have also taught common law family law.
The problem for a Quebecer faced with the use of the word "custody" is to determine whether it
refers to that one aspect of the wider concept of parental authority, which it does in Quebec private
law, alongside the duty to provide custody to educate and to supervise your children. These are
thought of as the three tenets of parental authority, whereas in the common law tradition it is a
different idea. In Quebec through the mid-1980s, we saw judges and even legal scholars -- and
certainly practitioners -- import the language of the common law and the distinction that common
law made, for example, between legal and physical custody when they were trying to make sense of
how two parents who had split up had participated in the life of a child. Quebecers really blew it by
importing when they did not need to import. It was Justice Beetz of the Supreme Court of Canada, in
a brilliant decision in 1987, who made the point that the civilian concept of custody was such that it
was allied necessarily to the physical presence of the child in the life of the custodial parent and that
the non-custodial parent was not being denied rights. The civil law concept of parental authority was
sufficiently rich and supple to acknowledge those rights.
You ask a nice question because it points out two things. The first is that the common law has no
monopoly on legislative wisdom. Perhaps the civilian concept of parental authority is the one that the
Divorce Act should use.
Second, and perhaps more seriously, here is an instance -- to get back to Bill S-4 -- where the federal
legislature has to ensure about what it wants legislative policy to be. Do we want one rule for all
Canadian children such that we will cut off provincial diversity at the pass insofar as it turns on the
niceties of legal concepts? Or do we want to fall back on this idea of suppletive law, to which Senator
Joyal referred, which would allow for a variation in the spirit of diversity that federalism in many
other instances not only sustains but also promotes? To my mind, that instance, and perhaps the tax
instance, are examples of federal jurisdiction where values of fairness across Canada are such that
we want people treated in the exactly the same way.
The question you ask is one of legislative intent. That is your business, not mine.
Senator Pearson: I realize that. Thank you for putting those remarks on the record.
The Chairman: A very nice way to wrap up. I thank you very much, Professor Kasirer.
Mr. Kasirer: May I make one uninvited remark? Claude Fabien told me about his appearance here.
He also mentioned that he had suggested this idea of un lexique de droit fédéral. He had mentioned at
that time -- and I would like to thank him publicly -- that the centre of which I am a director at
McGill University undertake the preparation of a private law dictionary in English and French, as it
would be a natural place to work on this kind of problem.
I also want to speak to the concern that Senator Fraser expressed. I know a bit about her background
as an editor, but the senator asked: Would it make the law more accessible? Would it reduce the
problems of interpretation if we used some kind of material device, such as italics or asterisks, to
signal to readers? I will not take a position on that. However, I would be inclined to observe or to
anticipate what I would expect to be resistance among members of the community who draft
legislation, that is to say, those who hold -- getting back to that symbolic appearance of the law -- its
pristine and uniform shape, being itself a value, and holding some of the authority of law is borne in
its very feature. It is not an accident that the typeface of the Statutes of Canada is always the same
because of the idea that the legislature speaks in a voice. Messing around with that comes at price.
There may be an advantage to it. There will be one source of resistance among drafters, although
perhaps the minister has such a control over her minions that that will be a small problem.
Senator Fraser: She said they would be happy to examine the question.
Mr. Kasirer: I noticed that.
Second, among members of the legal community I would also anticipate resistance, in particular in
The bill is sacred in its form.
Again, there is a professional value in that. Mr. Bisson referred to the Web site and there are many
other ways in which the interpretation of this new lexicon could be assured in a helpful way. One of
the other techniques might be done without necessarily impinging upon this. Without using the
language of religious law, texts are sacred in state law as well. I say that uninvited.
The Chairman: I thank you again for being patient with us and for coming back and forth here